YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others (Respondents)
Functions of a public nature
61. This is a domestic law concept which has no parallel in the Convention jurisprudence although the extracts quoted above give some indication of why it is in the Act. It is common ground that it is the nature of the function being performed, rather than the nature of the body performing it, which matters under section 6(3)(b).The case of Poplar Housing and Regeneration Community Association Ltd v Donoghue  QB 48 relied too heavily upon the historical links between the local authority and the registered social landlord, rather than upon the nature of the function itself which was the provision of social housing.
62. The contrast is drawn in the Act between 'public' functions and 'private' acts. This cannot refer to whether or not the acts are performed in public or in private. There are many acts performed in public (such as singing in the street) which have nothing to do with public functions. And there are many acts performed in private which are nevertheless in the exercise of public functions (such as the care of prisoners or compulsory psychiatric patients). The contrast is between what is 'public' in the sense of being done for or by or on behalf of the people as a whole and what is 'private' in the sense of being done for one's own purposes.
63. Hence it is common ground that 'functions of a public nature' include the exercise of the regulatory or coercive powers of the state. Thus, were a public authority to have power to delegate the task of regulating care homes to a private body, that regulation would be a function of a public nature. Again, it is common ground that privately run prisons perform functions of a public nature. In a similar category are private psychiatric hospitals when exercising their powers of compulsory detention under the Mental Health Act 1983: see R (A) v Partnerships in Care Ltd  1 WLR 2610, 2619. This is so, even though the power to detain rests with the hospital managers rather than with a state body by whom it has been delegated.
64. The respondents argue that the concept should go no further than this. The appellants, with the support of all the interveners including the Secretary of State for Constitutional Affairs, would go further. As Lord Nicholls of Birkenhead pointed out in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  1 AC 546, 555, para 10, 'the phrase used in the Act is public function, not governmental function'. He went on, in paras 11 and 12:
65. Those factors tell heavily in favour of section 6(3)(b) applying to this case. While there cannot be a single litmus test of what is a function of a public nature, the underlying rationale must be that it is a task for which the public, in the shape of the state, have assumed responsibility, at public expense if need be, and in the public interest.
66. One important factor is whether the state has assumed responsibility for seeing that this task is performed. In this case, there can be no doubt that the state has undertaken the responsibility of securing that the assessed community care needs of the people to whom section 21(1)(a) of the National Assistance Act 1948 applies are met. In the modern 'mixed economy of care', those needs may be met in a number of ways. But it is artificial and legalistic to draw a distinction between meeting those needs and the task of assessing and arranging them, when the state has assumed responsibility for seeing that both are done.
67. Another important factor is the public interest in having that task undertaken. In a state which cares about the welfare of the most vulnerable members of the community, there is a strong public interest in having people who are unable to look after themselves, whether because of old age, infirmity, mental or physical disability or youth, looked after properly. They must be provided with the specialist care, including the health care, that they need even if they are unable to arrange or pay for it themselves. No-one can doubt that providing health care can be a public function, even though it can also be provided purely privately. This home was providing health care by arrangement with the National Health Service as well as social care by arrangement with the local social services authority. It cannot be doubted that the provision of health care was a public function.
68. Another important factor is public funding. Not everything for which the state pays is a public function. The supply of goods and ancillary services such as laundry to a care home may well not be a public function. But providing a service to individual members of the public at public expense is different. These are people for whom the public have assumed responsibility. There may be other residents in the home for whom the public have not assumed responsibility. They may not have a remedy against the home under the Human Rights Act, although there may well be circumstances in which they would. But they will undoubtedly benefit from the human rights values which must already infuse the home's practices as a result of clause 55.1 of the service provision contract.
69. Another factor is whether the function involves or may involve the use of statutory coercive powers. All in-patients receiving treatment for psychiatric disorder are potentially vulnerable to detention under section 5 of the Mental Health Act 1983. This means that their capacity for self-determination is diminished and their vulnerability to human rights abuses increased even before any compulsory powers are invoked. Currently, the Mental Capacity Act 2005 provides for the restraint of a person who lacks the capacity to decide for herself, but only in that person's best interests and if certain conditions are fulfilled: see sections 5(1), 6(1) to (4). It does not provide for the deprivation of liberty within the meaning of article 5(1) of the Convention, whether or not the defendant is a public authority: see section 6(5).
70. However, the unregulated deprivation of liberty which is frequently practised upon people who lack the capacity to decide for themselves under the common law doctrine of necessity has been held to contravene article 5 of the Convention: see HL v United Kingdom (2004) 40 EHRR 761. Given the approach of the Strasbourg court in Storck v Germany (2005) 43 EHRR 96, it is perhaps unlikely that the United Kingdom would be absolved from responsibility for deprivations of liberty taking place in private care homes. Hence provisions to safeguard incapacitated people who are deprived of their liberty will be inserted into the Mental Capacity Act 2005 by the Mental Health Bill currently going through Parliament. These will apply to residents in care homes as well as in hospital. The use or potential use of statutory coercive powers is a powerful consideration in favour of this being a public function.
71. Finally, then, there is the close connection between this service and the core values underlying the Convention rights and the undoubted risk that rights will be violated unless adequate steps are taken to protect them.
72. The fact that other people are free to make their own private arrangements does not prevent a function which is in fact performed for this person pursuant to statutory arrangements and at public expense from being a function of a public nature. People are free to provide their own transport rather than to use the publicly provided facilities. People are free to arrange their own health care rather than to use the National Health Service. Nor does the fact that people pay for or towards the service they receive necessarily prevent its provision being a function of a public nature. National Health Service dentistry is no less a function of a public nature because those patients who can afford to do so pay for it. I accept that not every function which is performed by a 'core' public authority is necessarily a 'function of a public nature'; but the fact that a function is or has been performed by a core public authority for the benefit of the public must, as Lord Nicholls pointed out in Aston Cantlow  1 AC 546, be a relevant consideration.
73. Taken together, these factors lead inexorably to the conclusion that the company, in providing accommodation, health and social care for the appellant, was performing a function of a public nature. This was a function performed for the appellant pursuant to statutory arrangements, at public expense and in the public interest. I have no doubt that Parliament intended that it be covered by section 6(3)(b). The Court of Appeal was wrong to reach a different conclusion on indistinguishable facts in R (Heather) v Leonard Cheshire Foundation  2 All ER 936. Furthermore, an act in relation to the person for whom the public function is being put forward cannot be a "private" act for the purpose of section 6(5) (although other acts, such as ordering supplies, may be). The company is therefore potentially liable to the appellant (as well as to the council) for any breaches of her Convention rights.
74. We have not been concerned with whether her rights have been or might be breached in this case. It is common ground that the company may seek to justify any invasions of her qualified rights. Whether 'the rights of others' for this purpose includes the rights of the company itself is a question for another day. But it is also common ground that the company, being a 'non-governmental organisation' for the purpose of article 34 of the Convention, may complain of violations of its own Convention rights, as pointed out by Lord Nicholls in Aston Cantlow  1 AC 546, para 11. Any court would have to strike a fair balance between the competing rights.
75. For these reasons, in amplification of those given by my noble and learned friend, Lord Bingham of Cornhill, with which I agree, I would allow this appeal and make the declaration sought.
76. Does a privately owned, profit-earning care home providing care and accommodation for a publicly funded resident have "functions of a public nature", and is it therefore a public authority, under section 6(3)(b) of the Human Rights Act 1998? The second respondent, Southern Cross Healthcare Ltd ("Southern Cross") is such a care home. It has some 29,000 beds in the United Kingdom. About 80% of its residents benefit by full or partial local authority funding. The appellant, YL, is 84 years old and suffers from Alzheimer's Disease. She has lived in a Southern Cross care home since 3 January 2006. Her residence is largely funded by the first respondent, Birmingham City Council ("the council"). It is covered by a "three way" placement agreement signed on 20 February 2006 by Southern Cross as "the provider [homeowner]", the council and the third respondent, OL (YL's daughter), acting on behalf of YL, as well as by a third party funding agreement between the council and OL. Under these agreements Southern Cross receives a basic fee from the Council and a top-up fee from OL. A further tri-partite agreement dated 10 March 2006 records that Southern Cross's fee was £478 per week including the top up fee of £35 per week, and that each party [ie the council and YL/OL] "will only be liable for their own agreed proportion".
77. The council in arranging the placement acted pursuant to its duty under section 21 the National Assistance Act 1948. Because Southern Cross's fee for residence in the care home chosen by or on behalf of YL was greater than the council would usually expect to pay, the council was only obliged to agree to the placement upon a third party (YL or, in this case, OL) agreeing to meet the top up fee: section 54 of the Health and Social Care Act 2001 and regulation 4 the National Assistance (Residential Accommodation) (Additional Payments and Assessment of Resources) (Amendment) (England) Regulations 2001 (SI 2001/3441). In May 2006 the local primary care trust, South Birmingham NHS, authorised additional higher band nursing care, pursuant to its responsibility under section 3 of the National Health Service Act 1977, and section 49 of the Health and Social Care Act 2001, and an additional weekly figure (around £130) became payable on that account by South Birmingham NHS to Southern Cross. Although in the case of YL Southern Cross thus received fees under three heads from three sources, in the case of other residents and/or care homes fees for care and accommodation could be covered by a simple arrangement between the local authority and the care home. There were also resident in YL's and other care homes a number of "self-funders", that is residents who or whose relatives had arranged their own placement and met their fees themselves.
78. The issue of principle which the House must address is general and continuing, although the particular difficulties which led to this litigation have happily resolved themselves. They arose from allegations (strongly disputed) about the conduct of OL and YL's husband, VL, during visits, followed by a notice given by the care home to OL to have YL moved. In response YL invoked section 6(3)(b) of the Human Rights Act and article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms against Southern Cross as well as the council. The potential relevance of the issue is not confined to article 8. If, under section 6(3)(b) of the Act, the Convention applies against Southern Cross, then in other circumstances (not suggested as applicable in this case) other articles of the Convention - such as some or all of articles 3 to 5 and 9 to 11 - might apply. Further, if the Convention applies, then relatives such as YL's husband, VL, might in some circumstances be able directly to invoke the Convention (eg under article 8 in respect of the right to visit). However, the domestic case law in this field to date suggests that the main impact of the Convention, if applicable, would be in the area of closure of care homes or termination of residence for other reasons.
79. Whether the Convention applies under section 6(3)(b) does not depend upon whether other common law, statutory or contractual protection anyway exists. But on each side reference has been made to the extensive regulation of care homes, generally under statute and contractually in the case of this particular care home. Under the Care Standards Act 2000 and the Care Homes Regulations 2001 (SI 2001/3965), any care home must establish its fitness and obtain registration from the Commission for Social Care Inspection ("CSCI"). Its operations must comply with substantial and detailed regulations, backed by a procedure for complaints to the CSCI and in many cases by criminal sanctions. Under section 23 of the 2000 Act, the Secretary of State for Health is empowered to prepare and publish statements of national minimum standards. These are to be taken into account by the CSCI in relation to registration and in any proceedings for an offence under the regulations. The third edition of such national minimum standards Care Homes for Older People published in February 2003 extends to over 91 pages. Standard 13 requires service users to be able to have visitors of their choice in private at any reasonable time.
80. As to contract, the tripartite placement agreement incorporated (cf the opening paragraph of its Introduction and clauses 1 and 2(5)) a set of general contractual conditions agreed between the council and Southern Cross. These restricted Southern Cross's right to give notice of termination to circumstances where it had "good reason" (clause 24.7.2). Southern Cross also undertook that its service to residents would comply with the national minimum standards published under section 23 (clause 6.2.1), and that its employees, agents and officers would "at all times act in a way which is compatible with the Convention rights within the meaning of section 1 of the Human Rights Act 1998" (clause 55.1). That general tort and criminal law would also cover abuse of residents is evident. But, as stated, the issue for decision by the House does not depend upon the existence of protections other than the Convention.
81. Section 6(1) of the Human Rights Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3) includes in the concept of a public authority "(a) a court or tribunal and (b) any person certain of whose functions are functions of a public nature". But section 6(5) provides that "In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private". Thus, the section identifies two types of public authority - "core" public authorities who are to be so regarded in relation to all their functions and "hybrid" persons with functions both of a public and of a private nature who are only to be so regarded when the nature of their particular act under consideration is public rather than private.
The parties' submissions
82. The interpretation and application of section 6(3)(b) have been left by Parliament to the courts. A range of approaches to section 6(3)(b) was advocated before the House. Mr Andrew Arden QC for the council and Miss Beverly Lang QC for Southern Cross distinguish the council's public law functions in placing and funding YL in the care home from Southern Cross's private law activities under contract in running the care home. In contrast, Mr David Pannick QC for YL and Miss Helen Mountfield for OL and VL describe Southern Cross as performing functions of the State, in the form here of the council. Thus, in reply, Mr Pannick suggested that Parliament was in section 6(3)(b):
Mr Pannick invited the House to confine its attention to care homes. But some consideration of wider implications is necessary. On Mr Pannick's formulation, any contractor agreeing with a governmental authority to supply goods or services, the supply of which fulfils a responsibility incumbent on that authority in the public interest, will itself in that regard be a public authority. Mr Pannick suggested that section 6(3)(b) would exclude "incidental" services undertaken by private contractors such as window cleaning, but it is not easy to see on what principle, at least if the cleaning was of premises let by the council to its tenants rather than of the council's offices.
83. Mr Philip Sales QC for the Secretary of State for Constitutional Affairs as intervener was, in contrast, concerned to look more widely. He advances a nuanced, "factor-based" test, with limitation of the application of section 6(3)(b) avowedly in mind. He submits that contracting out by a governmental authority of services involved in a particular function of that authority does not of itself make the contractor a public authority. Other factors have to be examined. In his submission Southern Cross was and is a public authority within section 6(3)(b) because its services discharge the local authority's duty, are publicly funded, are subject to detailed and intensive regulation and are not services which the beneficiaries of the services could provide for themselves, and there is an immediate and direct link between the services and Convention rights, such that State responsibility might be engaged by the manner of their performance.
84. In oral submissions Mr Sales added that, had Southern Cross had coercive powers (eg to detain), that would have been another pointer. In written submissions after the hearing, Mr Sales suggests that this last factor applies to this case in the light of section 22(5)(b) of the Care Standards Act 2000 and regulation 13(7)(8) Care Homes Regulations, and will be reinforced when the Mental Capacity Act 2005 come into force. But in my view the former provisions do no more than reflect the common law doctrine of necessity, and anyway only operate in limited circumstances, while the 2005 Act, not yet in force, will apply (expressly) to all carers whether or not they are a public authority, and is neutral. None of these provisions assists analysis of the general activity of providing accommodation and care to care home residents.
85. Mr Sales also suggests, as a further factor, that the existence of an essentially private or personal element in a relationship between a service provider and the beneficiary (as with fostering) would point against any conclusion that the provider (eg a foster parent) was a public authority. But Mr Pannick responds that it is often where there are private relationships that the protection of the Convention is most needed, and Mr Fordham for Justice, Liberty and the British Institute of Human Rights as interveners positively asserts that foster parents are a public authority under section 6(3)(b). Another category which Mr Sales argues falls outside section 6(3)(b) is the private landlord, with whom or which a local authority makes arrangements for the provision of accommodation in discharge of its duties to the homeless under section 188, 190, 200 or 204(4) of the Housing Act 1996. Mr Pannick would wish to leave that open, while Mr Fordham submits that private landlords generally should be seen as falling within section 6(3)(b), whenever the accommodation is paid for by public funding, even if only by housing benefit. In the event, I consider that it is unnecessary and unwise to follow Mr Sales and Mr Fordham into any definite analysis of these particular cases, the circumstances of which have not been examined at all closely before the House.
Guidance to the interpretation of section 6(3)(b)
86. Section 6(3)(b) is a domestic law provision with no direct parallel in European human rights or domestic jurisprudence. Various guides to its interpretation have been suggested. In Poplar Housing and Regeneration Community Association Ltd v Donoghue  EWCA Civ 595;  QB 48, para. 65, Lord Woolf CJ considered that section 6 was "clearly inspired by the approach developed by the courts in identifying the bodies and activities subject to judicial review". Several recent authorities (eg R (A) v Partnerships in Care Ltd  EWHC 529 (Admin);  1 WLR 2610 and R (Beer) (trading as Hammer Trout Farm) v Hampshire Farmers' Markets Ltd  EWCA Civ 1056;  1 WLR 233) have indeed assimilated the tests.
87. However, it is clear from the House's decision in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank  UKHL 37;  1 AC 546 and R (SB) v Governors of Denbigh High School  UKHL 15;  1 AC 100 that, while authorities on judicial review can be helpful, section 6 has a different rationale, linked to the scope of State responsibility in Strasbourg. In the latter case (at para 29), my noble and learned friend Lord Bingham of Cornhill said of the Act's general aim that:
In Aston Cantlow, section 6 was specifically addressed. My noble and learned friend Lord Nicholls of Birkenhead said (para 6):
The rationale was further spelled out by my noble and learned friend Lord Rodger of Earlsferry (paras 160 to 163) who said:
In paragraph 163 Lord Rodger concluded that:
My noble and learned friends Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of Foscote, all, I understand, accepted this rationale at paras 52, 87 and 129 respectively. Lord Hope observed that, although the domestic case law on judicial review might be helpful, it could not be determinative of what is a core or hybrid public authority and "must be examined in the light of the jurisprudence of the Strasbourg Court as to those bodies which engage the responsibility of the State for the purposes of the Convention".